Calder v. Chapman

52 Pa. 359 | Pa. | 1866

The opinion of the court was delivered, October 17th 1866, by

Read, J.

At the time Alexander Calder executed the mortgage to William C. Marshall and Walker Marshall of the 30 acres called the “ Factory Lot,” included in the boundaries of a larger piece of land embraced in the mortgage, the mortgagor had no title or estate of any kind in the said “ Factory Lot.” The mortgage was dated November 1st 1853, and recorded on the 3d.

At the time of the execution, Israel Chapman was the undisputed owner of the 30 acres, and he died in July 1854; and Abner Chapman, who was one of the sons of Israel, with the executors and other heirs of the said decedent, by deed dated September 21st 1854, conveyed the “ Factory Lot” to Alexander Calder.

The judgment of Yan Dusen & Jagger against Alexander Calder was entered August 5th 1858 ; and, on the 23d of August 1862, the “ Factory Lot” was sold thereon, by the sheriff, to Abner Chapman, and deed executed to him and acknowledged by the sheriff, September 4th 1862. The moneys arising from the said sale being applied to an earlier judgment of Hornbeck v. Calder.

The Marshalls proceeded on the mortgage, and on the 2d September 1862, the sheriff, under levari facias, sold the larger tract, including the thirty-acre “ Factory Lot,” to the plaintiffs, the Marshalls; the deed to them was executed and acknowledged September 4th 1862.

The question is, by these sales who became the owner of the Factory Lot ?” Was it Chapman, or the Marshalls ?

It is said, “ that if a man sells and conveys land to which he has no right or title, and afterwards buys or acquires the title to the same land, he cannot claim it as against his grantee and, whether this rule is based on estoppel or rebutter, or upon the equity "as practised in Pennsylvania by which that which ought to be done is considered as done, is perhaps immaterial, as the effects of our recording acts must be the same in either case.

This whole subject has been fully ventilated by Judge Hare in his very able note to the Duchess of Kingston’s Case, in • 2 Smith’s Lead. Cas. pp. 705, 723-4 (ed. 1866), and in Mr. Rawle’s excellent work on Covenants for Title (3d ed.), ch. 9; and perhaps the most succinct statement of the doctrine is to be found in the very clear and lucid opinion of Mr. Justice Nelson, in Van Rensselaer v. Kearney, 11 How. 297. “ It is a doctrine, therefore,” said he, “ when properly understood and applied, that concludes the truth in order to prevent fraud and falsehood, and imposes silence on a party only where, in conscience and honesty, _he should not be allowed to speak.”

Now, in the present case, in searching for encumbrances or conveyances, the search against Calder would begin with his title from Chapman, and the search beyond would be against Chapman and those through whom he claimed; and a search against Oalder during the same period would be considered an utter absurdity. If the mortgage and the conveyance were ten years apart, the case would only be more glaring than the one presented to us.

In Uhler v. Hutchinson, 11 Harris 110, it was held that the holder of an unrecorded mortgage, or of a mortgage illegally recorded, by giving notice of its existence, at a sheriff’s sale upon a judgment, cannot bind the estate mortgaged in the hands of a purchaser at such sale, where the judgment-creditor had no notice of the mortgage when his judgment was entered. In this case the mortgage had a defective acknowledgment. So, where the mortgage is made by an absolute conveyance with a deed of defeasance, and the defeasance is unrecorded, it is decided that it will be considered as an unrecorded mortgage ; and where the absolute deed and the defeasance were recorded in the same volume, on the same day, and though it did not expressly so appear most probably in juxtaposition, C. J. Gibson said, “ The principle applicable to them is the same: a creditor in search of a clue to the title would necessarily stop at a conveyanee absolute on the face of it, and referring to nothing beyond it, he would have no reason to suspect that further search would lead to a defeasance, of which, not lying in the channel of the title, he would not, though actually recorded, be bound to take notice.” “ If the record of the encumbrance lay not in the creditor’s way, he was not bound to notice it:” McLanahan v. Reeside, 9 Watts 510, 511. And, in Luch’s Appeal, 8 Wright 519, it was held that mortgages must be recorded in mortgage-books, and are not properly recorded in any other species of books, where they cannot be found by means of the mortgage-index. In that case the mortgage was recorded in the Book of Miscellanies in Northampton county, and it was held to 'be an unrecorded mortgage.

These decisions rule this case, and there is no hardship on the mortgagees; for an examination of the title when they took the mortgage must have shown them Calder had no title to the “ Factory Lot” ; an innocent creditor should not suffer for their gross negligence.

Judgment affirmed.